From the Desk of Mike Dyer
A Line of Duty Injury is NOT Part of the Job
By MIKE DYER
I recently had the opportunity to speak at the Nebraska State Fraternal Order of Police’s Annual Convention about the rights of injured police officers. As a Nebraska attorney for nearly two decades and having retired from the NYPD due to a work injury, I enjoy the opportunity to provide my legal and personal experience to other Cops.
The majority of Cops understand the basic benefits of workers’ compensation, getting the medical bills paid and being paid for time off of work. However, there are other benefits and factors that injured Cops need to be aware of in order to maximize the recovery for a work injury.
When a Cop puts on a uniform and goes to work, he or she is empowered with the legal ability to do police work. As such, police officers are held to a higher standard and may even lose their job for reasons a civilian would not. While cops have a raised level of accountability, they have the same rights as everyone else when it comes to receiving compensation for their work-related injuries. Additionally, if a Cop is hurt by a drunk or negligent driver, hurt by a perpetrator resisting arrest or hurt by any other act of negligence, the person who hurts a Cop is responsible to compensate that Cop for the damages done. In many cases, there is insurance available. Even though police work is an inherently dangerous job, getting hurt in the line of duty is not part of the job that is included in a Cop’s regular paycheck.
Workers’ Compensation
If a Cop is injured in the course and scope of employment, the injury is covered under workers’ compensation. Course and scope refers to being at work doing your job and has been interpreted by the Nebraska Supreme Court to includes any time between when a worker get out of his/her vehicle to walk into work until the worker gets back in his/her car to go home. If a Cop slips in the parking lot walking into work, that injury can be compensable. Covered damages include virtually every injury you suffer while at work, with some exceptions like an officer’s own willful negligence, horseplay or drug or alcohol impairment.
If a Cop is injured in the course and scope of employment, there are some steps that you must be taken in order to ensure that the rights under workers’ compensation are protected.
Typically, the first thing that an injured officer must do is report the injury to his/her superior. Workers’ compensation laws are very clear on this point. An injured worker has a duty to report an injury as soon as is practicable. Failure to do so may result in outright denial of the claim.
The next thing an injured cop must do is seek medical treatment. The burden to prove a work injury is on the cop who is making the claim. In order to substantiate an actual injury, the injured worker must have evidence of the injury and the best evidence is supporting medical documentation. If a cop needs treatment, but fails to go to the doctor within a reasonable time after the injury, the injury may not be covered under workers compensation. There is no set time in which a police officer must seek treatment, but the longer they wait, the less likely coverage will be available.
There are doctors in Nebraska that market themselves to workers’ compensation insurance companies as being able to get the injured worker back to work quicker. This is particularly appealing to insurance adjusters whose job it is to save the insurance company money. However, it is critical for injured workers to understand their rights regarding medical treatment.
The Nebraska Workers' Compensation Court website at http://www.wcc.ne.gov/faq_all.htm states:
“There are rules about whether the employee or employer chooses the doctor. The employee has the right to select a physician who has maintained the medical records of the employee (or an immediate family member) when the employer notifies the employee of this right. If the employee does not have or does not choose such a physician, then the employer may select the physician. The initial choice of physician, when chosen by the employee or employer after the employer notifies the employee of the right to choose, can only be changed when both the employee and the employer agree on the change or the Nebraska Workers' Compensation Court orders the change.”
An injured Cop can be treated by his/her own doctor or by the doctor of any immediate family member. This is the Cop’s right to exercise or to waive. A Cop does not necessarily have to treat with the doctor that the workers’ compensation insurance company has provided or referred. It is important to establish a treating physician immediately, as an agreement to changes are very difficult to accomplish.
If an employer participates in a Managed Care Plan, different rules apply. There are different rules that you should be aware of. Under a Managed Care Plan, the employer/insurer has to provide the injured worker a list of all the doctors in the plan so that the injured worker can choose a doctor. Doctors who are not on the list can complete the necessary forms to become a plan provider. If a referral is made to a specialist under a Managed Care Plan, that specialist must also be chosen from the list provided.
In addition to having the medical expenses covered by the workers’ compensation insurance, the injured worker is also compensated for medical-related mileage. The current mileage reimbursement rate is 50.5 cents per mile.
Once an injured worker reaches maximum medical improvement as determined by a doctor and commonly referred to as being “as good as you are going to get”, additional benefits may be owed. Depending on the injury and treatment, a doctor may assign an injured worker with a percentage of permanent impairment using the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The Nebraska Workers’ Compensation Statutes make a distinction between a body as a whole injury or an injury to a scheduled member such as an arm, leg, shoulder, knee or foot. A body as a whole injury provides for 300 weeks of benefits; the permanency benefits for a scheduled member are determined based on the location of the injury and the statutory formula established.
If a body as a whole injury leaves a Cop with permanent work restrictions, it is possible to have a Loss of Earnings Evaluation (LOE) done. An LOE factors in such things as age, training, education, skills and job requirements to come up with a percentage of Loss of Earnings. This percentage is then used to determine additional benefits which may be owed.
When the injuries suffered make it impossible for an injured worker to return to the same or similar type of work for which the worker has previous training and/or experience, workers’ compensation can also provide vocational rehabilitation. A Vocational Rehabilitation Specialist can provide services ranging from job placement to college education. For the time period that the injured worker participates in an approved vocational rehabilitation plan, the worker is entitled to monetary benefits. The goal of the workers’ compensation laws is to keep injured workers financially stable while recovering from work-related injuries, and then ultimately get the injured person back into the job market.
Workers’ compensation benefits take action on the part of the injured worker. If no action is taken, valuable benefits could be lost.
Third Party Liability
If someone negligently or intentionally hurts a Cop, general damages of pain and suffering can be sought through a claim against the negligent third party’s personal insurance. An injured Cop may pursue a workers’ compensation claim and a claim for personal injury against the negligent third party. Some Cops express reservation at pursuing a workers’ compensation claim when there is a third party at fault for the injuries because the Cop does not feel it is appropriate to burden their employer’s workers’ compensation insurance carrier by pursuing payment for injuries that were caused by third-party negligence. However, most Cops do not realize the worker’s compensation insurance carrier retains a right to be paid back by the at-fault third party’s insurance for the expenses incurred on the injured Cop’s behalf.
Under the third party liability scenario, the workers’ compensation coverage becomes an invaluable asset to the cop. While any payment from a third party insurer may come months or years down the road, the workers’ compensation payments are usually paid immediately. It is as though the workers’ compensation insurer is fronting the money that the worker needs right now, with the understanding that there may be a payback down the road.
Uninsured/Underinsured Motorist Coverage
It also may be possible for a Cop to collect from his/her own uninsured/underinsured motorist coverage if they are in a car crash and the person who hit them does not have insurance or does not have enough insurance to cover all of the damages. Uninsured/Underinsured motor vehicle insurance is designed for just that purpose and is a common part of many car insurance policies. The uninsured/underinsured motor vehicle insurance carrier would “stand in the shoes” of the negligent part for the purpose of providing coverage, and the benefits would be available to the policy holder regardless of any related workers’ compensation claim. Each policy is different so it is critical to understand your own auto insurance policy and the benefits it provides. Many people who buy insurance for their car do not have a true understanding of what they are buying. Many opt to get the least expensive option. However, Cops are on patrol during the worst weather, at the most dangerous times for drunk drivers to be on the road and for many more hours than most people. This increases a Cop’s chances of a car crash. Adequate personal automobile insurance can be critical to the full recovery of damages. Higher limits may cost more in premiums, but that expense pales in the face of the prospect of six-digit medical bills with no meaningful source from which to pursue compensation.
Most people would not risk their lives for a million dollars, but Cops do so for much less every day. It is a Cop’s right to seek reimbursement for all damages incurred due to an injury on the job. It takes some simple action to protect a Cop’s rights. I encourage all injured Cops to pursue what is rightfully owed to them.
Mike Dyer
Dyer Law, PC, LLO
10730 Pacific Street, Suite 111
Omaha, NE 68116
(402) 393-7529 (Omaha)
(402) 488-3937 (Lincoln)
(888) 393-7529 (toll-free)
